Palmer v. Miss. Real Estate Comm'n
| Docket Number: | 2007-CC-01660-COA Linked Case(s): 2007-CC-01660-SCT2007-CC-01660-COA2007-CT-01660-SCT |
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| Oral Argument: | 08-05-2008 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-16-2008 Opinion Author: GRIFFIS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real estate licensing - Failing to provide property condition disclosure statement - Dual agency disclosure - Section 89-1-521(1) - Down payment assistance Judge(s) Concurring: LEE AND MYERS, P.JJ., BARNES, ROBERTS AND CARLTON, JJ.; ISHEE, J., CONCURS IN PART. Non Participating Judge(s): CHANDLER, J. Concur in Part, Concur in Result 1: Irving, J. Concurs in Result Only: KING, C.J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 08-24-2007 Appealed from: MADISON COUNTY CIRCUIT COURT Judge: William E. Chapman, III Disposition: AFFIRMED DECISION OF THE COMMISSION Case Number: 2007-0039C |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DELL H. PALMER, TANJA E. ADAMS AND
AUDREY NEELY |
ROY H. LIDDELL,
CLINT DOUGLAS VANDERVER |
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| Appellee: | MISSISSIPPI REAL ESTATE COMMISSION | JOHN L. MAXEY, PAUL HOBART KIMBLE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real estate licensing - Failing to provide property condition disclosure statement - Dual agency disclosure - Section 89-1-521(1) - Down payment assistance |
| Summary of the Facts: | Cynthia Curley, a buyer of residential property, filed a complaint with the Mississippi Real Estate Commission alleging improper conduct by three real estate agents. Tanja E. Adams and Audrey Neely were the sales agents in the transaction, and Dell H. Palmer was the responsible broker who supervised their work. After conducting a hearing, the Commission found the agents guilty of misconduct and disciplined them by temporarily suspending their licenses and ordering them to complete additional continuing education courses. The circuit court affirmed the Commission’s decision. Adams, Neely, and Palmer appeal. |
| Summary of Opinion Analysis: | The Commission found the agents guilty of failing to provide a property condition disclosure statement as required by law, failing to have a dual agency confirmation form properly executed by the seller, and having certain irregularities in the contract of sale and closing statement regarding down payment assistance provided by a nonparty charity to the buyer. The agents argue that the seller was a limited liability company; therefore, a dual agency disclosure was not required pursuant to Rule IV.E.4 of the Rules and Regulations of the Mississippi Real Estate Commission. The Commission found that the transaction did not fall within the LLC exception because it was unclear whether the seller was selling the property as an individual or as an LLC. There is substantial evidence of the confusion created by forms signed by the seller as an individual, not as an LLC. This evidence is listed in the Commission’s findings of fact. To find that Curley was put on notice that she was purchasing the property from an LLC would require the Court to totally disregard the Commission’s finding that by signing numerous other documents as an individual, the seller created the confusion. The agents also argue that they substantially complied with section 89-1-521(1), which required them to deliver a property disclosure statement to Curley, the buyer. Although the Commission found no property disclosure statement in the file for the transaction, the agents presented such a statement at the hearing. The statement was not signed by Curley, but Adams testified that Neely believed that she had delivered a property disclosure statement to Curley. Also, Curley did not deny having received a copy of the statement. The agents could not explain to the Commission why their files had not been maintained as required by the Commission’s regulations. Further, there was no evidence that the statement was delivered to the buyer as required by section 89-1-521(1). The Commission’s conclusion that this transaction demonstrated “improper dealing” on the part of the agents is supported by substantial evidence. This was a high-risk loan characterized as a low-risk loan by the actions of the seller, all unbeknownst to HUD and the lender. The buyer was not a good credit risk. Initially, she qualified for an 85% loan. People’s Choice Bank increased the down payment requirement to 20%. A 20% down payment on a $126,000 home would have required Curley to produce over $25,000 of her own funds. According to Curley, when she told Adams, the realtor, that she had only $100 available for a down payment, Adams responded that Curley’s financial situation would be no problem. Curley did not have to produce a down payment. The seller provided that down payment through a network of legal entities. Considering that the seller provided the down payment so Curley could qualify for a HUD loan, he sold his house for $100,800, which was 100% of the loan. When asked whether he would have sold the house for $100,000, Zehr answered, “I can’t say.” The house had been sold to the seller two years earlier for $28,000. Adams, Neely, and Palmer knowingly participated in the seller’s elaborate scheme. Based on their dual listing agent status, they owed Curley fiduciary duties and duties of good faith and fair dealing. Adams, Neely, and Palmer abdicated their agency responsibilities and made their commissions on the sale of the property. |
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